LEGAL IMPACTS OF THE MONALISA PROJECT ON THE INTERNATIONAL LEGAL FRAMEWORK FOR NAVIGATION AT SEA

Transcription

1 LEGAL IMPACTS OF THE MONALISA PROJECT ON THE INTERNATIONAL LEGAL FRAMEWORK FOR NAVIGATION AT SEA

2 Proshanto K. Mukherjee 1 The author gratefully acknowledges the contributions and assistance of Olena Bokareva 2 and Nut Sillwatwinyoo 3 1. Professor of Maritime Law and Director of the Maritime Law Programme, Faculty of Law, Lund University. 2. Doctoral Candidate, Faculty of Law, Lund University. 3. LL.M Graduate in Maritime Law, Faculty of Law, Lund University.

3 IMPACT OF THE MONALISA PROJECT ON THE INTERNATIONAL LEGAL FRAMEWORK FOR NAVIGATION AT SEA Proshanto K. Mukherjee 1 (The author gratefully acknowledges the contributions and assistance of Olena Bokareva 2 and Nut Sillwatwinyoo 3 1 Professor of Maritime Law and Director of the Maritime Law Programme, Faculty of Law, Lund University. 2 Doctoral Candidate, Faculty of Law, Lund University. 3 LL.M Graduate in Maritime Law, Faculty of Law, Lund University.

4 Abstract MONALISA is an acronym for Motorways and Electronic Navigation by Intelligence at Sea. It is a visionary concept designed to make a tangible contribution to maritime transportation in terms of safety, efficiency and environmental protection. It has a two-fold objective: one aimed at contributing in a concrete way to safe, efficient and environmentally protective maritime navigation and the other to focus specifically on EU strategy in the Baltic Sea Region. The salient features of the MONALISA Project are depicted through four activities as follows: Dynamic and Proactive Route Planning (DPR) otherwise known as Green Routes ; Electronic Verification of Officer s Certificates; Ensuring the Quality of Hydrographic Data on Shipping Routes and Areas; Global Sharing of Maritime Data. The central core of DPR, and in essence, the MONALISA Project itself, is the concept of sea traffic management (STM) which is akin to air traffic management (ATM). It is anticipated that STM will offer a new service facility known as the Sea Traffic Coordination Center (STCC), similar to air traffic control centres (ATCC) in aviation. The STCC concept will provide new processes and methodologies for communication of information between ship and shore, and ship-to-ship. Apart from DPR the second, third and fourth activities mentioned above are equally significant. This Report focuses on the legal issues relating to the salient features of MONALISA. One of the key concerns regarding the acceptance and implementation of MONALISA internationally is the potential conflict with certain aspects of UNCLOS particularly in relation to the notion of freedom of the high seas and flag state sovereignty over its vessels on the high seas. Closely associated with UNCLOS issues pertaining to the rights of coastal, port and flag states are issues relating to maritime safety and protection of the marine environment. While UNCLOS provides the basic legal framework for both these matters, the specifics are contained in the two principal IMO Conventions SOLAS and MARPOL. In particular, the SOLAS provisions dealing with navigational safety, have an impact on key aspects of MONALISA since SOLAS largely contemplates control of high seas navigation being in the hands of the shipboard navigators whereas MONALISA envisages the concept of DPR which is a shore based advisory system but final navigational decisions are left to be decided by the ship master. The object is to improve navigational safety and minimize environmental damage through the institution of green routes. Another area of potential concern is the second activity mentioned above which can be viewed as an intrusion into the flag state s exclusive authority over certification requirements of officers serving on board its ships. However, the end objective of this activity like the first one is to facilitate maritime safety and not to cause an impediment. It is well-known that human error is a primary cause of accidents at sea and that inadequate seafarer qualifications contribute to accidents and environmental damage caused by ships. In monitoring seafarer qualifications 1

5 MONALISA introduces the concept of the smart card which despite a potential conflict with the existing regime relating to seafarers, can be of great practical usefulness. Through the MONALISA Project there can be better quality of hydrographic data for the use of ships which in turn can contribute to better navigational safety and protection of the marine environment. Indeed, global sharing of all maritime data serves the same purposes globally as well as in the Baltic Sea Region. The potential conflicts of MONALISA with the extant international legal framework are not irreconcilable. The ultimate aim of MONALISA is consistent with the objectives of the international maritime community to promote maritime safety and protection of the marine environment, and therefore, it should be viewed in positive light by all concerned, especially the international bodies responsible for shipping and its legal framework. 2

6 Table of Contents CHAPTER 1 - INTRODUCTION 1.1 Background 1.2 Purpose of Report 1.3 Structure of Report CHAPTER 2 - SYNOPTIC OVERVIEW OF THE MONALISA PROJECT 2.1 Salient Features The sea traffic management (STM) concept Dynamic and proactive route planning Green Routes Verification system for certificates held by ships officers Quality assurance of hydrographic data Global sharing of maritime information 2.2 Technology versus Law 2.3 Summary of Legal Issues CHAPTER 3 - ISSUES ARISING OUT OF UNCLOS 3.1 Maritime Zones under UNCLOS Baselines Internal waters Territorial seas Contiguous zone Exclusive economic zone Continental shelf High seas 3

7 3.1.8 Freedom of navigation in the EEZ and the high seas Rights in archipelagic sea lanes Transit passage in international straits CHAPTER 4 - IMO AND RELEVANT IMO CONVENTIONS 4.1 Preliminary Remarks 4.2 Safety Conventions SOLAS and COLREGS SOLAS Ship safety Personal and occupational safety Synoptic structure of SOLAS 4.3 Safety of Navigation 4.4 COLREGS Background and object Structure COLREGS as penal law 4.5 Seafarers Qualification, Welfare and the Human Element STCW Convention Welfare and the human element 4.6 Search and Rescue CHAPTER 5 - PROTECTION OF THE MARINE ENVIRONMENT 5.1 General 5.2. MARPOL 73/78 Convention General characteristics and layout 4

8 5.2.2 Salient features of article and features common to most annexes Specific features of each annex CHAPTER 6 - SPECIFIC LEGAL ISSUES 6.1 Routing Systems, Sea Lanes and Traffic Separation Schemes 6.2 Vessel Traffic System (VTS) and Vessel Traffic Management System (VTMS) under UNCLOS and SOLAS 6.3 Flag State, Port State and Coastal State 6.4 Hydrographic Implications CHAPTER 7 - POTENTIAL CONFLICTS BETWEEN MONA LISA CONCEPTS AND EXTANT INTERNATIONAL LAW 7.1 Concept of Sea Traffic Management (SMT): Conflict with International Legal Regimes 7.2 The Notion of the Dynamic TSS System 7.3 Concept of the Smart Card, Conflict with STCW, Labour Law under MLC, National Flag State Regimes, Conflict with Unions (ITF) and PSC Regimes 7.4 The Baltic Sea Region and Hydrographic Surveys 8.1 Options for Resolution of Conflicts CHAPTER 8 - CONCLUSION 8.2 Analogies with National Jurisdictions: Canada's Maritime Traffic Regulatory Regimes 8.3 The STM rationale 5

9 CHAPTER 1 - INTRODUCTION 1.1 Background Trade is the life blood of a nation and shipping is the global means by which trade is conducted. Maritime transportation, which is synonymous with shipping, is of crucial importance to society as a whole. Thus, shipping is an integral and inextricable part of global trade simply because over 80% of it is carried out by ships 4. In this Report, the terms "shipping" and "maritime transport" or "maritime transportation" are used interchangeably, the emphasis being on the fact that the modality through which international trade is conducted is largely waterborne utilizing varieties of ships. It needs no reiteration that ships today are purpose-built and are the product of sophisticated shipbuilding and navigational and engineering technology. Needless to say, the economic dimension of shipping cannot be discounted, and therefore, efficiency is crucial to the success of the shipping industry and maritime transportation as a whole. Financial considerations are a function of efficiency in shipping which means the benefits derived must be greater than the costs incurred, and that is largely dependent on a range of factors including advancements in the art, science and technology of marine navigation and seafarer competence not to mention the maritime safety and marine environmental considerations. It is recognized that despite technological advancements and relatively high levels of proficiency in the maritime vocations, there remain many challenges that maritime transport needs to meet to strengthen competitiveness and contribute to increasingly efficient transportation solutions for the beneficiaries of transportation services. Development of appropriate technology and its optimum use is one way of meeting the challenges. It is also recognized that within the European Union, maritime transport is of huge significance given the numerous waterways that define the geographical characteristics of the continent of Europe. This has provided the impetus for the initiation of the EU Project generally known as MONALISA which is an acronym for Motorways and Electronic Navigation by Intelligence at Sea. In the EU context it is a part of the so-called Motorways of the Sea Project which is a wider manifestation of the concept taking into account the various parameters that impact on shipping efficiency. The object of MONALISA is two-fold one aims at contributing in a concrete fashion to safe, efficient and environmentally protective maritime transportation; the other is to focus specifically on EU strategy in the Baltic Sea Region. Thus the Motorways of the Sea concept can be viewed as the maritime dimension of a Trans-European Transport Network (TEN-T). On the other hand, the MONALISA Project, apart from giving effect to a regional strategy for the Baltic Sea Region, can also contribute to the enhancement of safety, efficiency and environmental consciousness of world shipping. In effect, therefore, MONALISA has a wider application and is of expansive benefit in international terms. The Swedish Maritime Administration (SMA) as part of the Government of Sweden initiated the MONALISA Project in early The Swedish initiative flows from its appreciation and 4 Martin Stopford, Maritime Economics, 3 rd ed., London and New York: Routledge, 2009, at p. 1. 6

10 recognition of the fact that maritime transportation plays a central role in the overall strategy of the EU in the transportation field. Its connectivity with European foreign trade and overall economic development of the EU is thus indisputable. The Swedish sensitivity is borne out by the fact that the MONALISA Project was selected for co-financing of 50 % from the EU s budget for the TEN-T. MONALISA is a visionary concept which is designed to make a tangible contribution to maritime transportation in terms of safety, efficiency and environmental protection. The execution of this objective is through the institution of innovative navigational services to the shipping industry based on advanced electronic technology. There are several facets and dimensions to this objective which are set out in detail in the first substantive section of this Report. 1.2 Purpose of Report As can be gleaned from this Report, its principal purpose is to address the legal issues associated with the fast-paced technological innovations characterized by the MONALISA Project. Needless to say, in an attempt to thoroughly examine and analyze the legal issues, the technical or non-legal aspects of the Project must be addressed in necessary contextual detail. The contents of the Report are dictated by the terms of reference (TOR) which are appended to this Report. 1.3 Structure of Report Given the diversity of legal issues associated with the technological aspects of the project, a synoptic overview is presented in the next section of this Report. In this section, first, the salient features of the Project are highlighted followed by a discussion on the correlation between law and technology which is sometimes in a state of tension with legal developments almost always following well behind the technological innovations. In the context of this Project, this assertion is no different except that it has been recognized by the promoters of the Project within the Swedish establishment that the legal issues need to be addressed in a clear, comprehensive and meaningful manner as early as possible. Hence, the commissioning of this particular inquiry has been initiated at this relatively early stage of the MONALISA Project. A summary of the legal issues is presented at the end of the second section. Following the summary, in the third section the legal issues arising out of the international regime of the law of the sea codified in the United Nations Convention on the Law of the Sea, 1982 (UNCLOS) are examined in relevant detail. An overview of the maritime zones under UNCLOS is first presented and then the various rights and jurisdictions prevailing under the Convention are discussed. The focus of the discussion is on the interrelationship between rights of coastal states on the one hand and those of flag states, particularly in relation to freedom of navigation and restriction on navigation pertaining to various zones. The discussion extends to the doctrines of freedom of the high seas, innocent passage in territorial seas, rights in archipelagic sea lanes and transit passage in international straits, all of which have an impact on the technological innovations of the MONALISA Project. 7

11 In a similar vein, the role of the International Maritime Organization (IMO) and the Conventions and treaty instruments generated by it are examined in section 4 of the Report. The discussion extends to examining the salient features of the Safety of Life at Sea (SOLAS) Convention, the Collision Regulations (COLREGS), and the Standards of Training, Certification and Watchkeeping (STCW) Convention. The LOADLINES and Search and Rescue (SAR) Conventions are also mentioned. The concept of the human element which is related to the welfare of seafarers is included in the discussion. In section 5, protection of the marine environment is discussed by reference to the MARPOL Convention and in section 6 specific legal issues are examined which include routing systems, and traffic separation schemes under UNCLOS, SOLAS and COLREGS and the concepts of vessel traffic systems (VTS) and vessel traffic management systems (VTMS) under UNCLOS and SOLAS are examined. The relative roles of the flag state, coastal state and port state together with the regimes of port state jurisdiction and control (PSJ and PSC) are addressed. Enforcement by the flag, coastal and port states for all types of ship-source pollution is discussed together with the hydrographic implications associated with navigational safety and routing which is at the heart of the MONALISA initiative. In this context, the relative roles of the IMO and the International Hydrographic Organization (IHO) are also considered. In section 7, potential conflicts between the MONALISA concept and existing international law instruments are addressed. The conflict areas are associated with the newly innovated concept of sea traffic management (STM) and green routing which are central to the MONALISA Project. In this section the concept of the smart card is also addressed in consideration of potential conflict with the STCW Convention and international maritime labour laws. Whether the smart card is compatible with PSC is also examined together with the rights of flag states over their crew members. Section 8, which is the conclusion of the Report, presents options for resolution of conflicts and inconsistencies. One option is to propose amendments to international instruments and the other is to promote the voluntary application of the MONALISA innovations. In this context, the maritime traffic regulatory regimes currently operating in Canada are examined to draw analogies between those national regimes and the MONALISA Proposals. 8

12 CHAPTER 2 - SYNOPTIC OVERVIEW OF THE MONALISA PROJECT Salient Features The MONALISA Project consists of four activities which are as follows: Activity 1 - Dynamic and Proactive Route Planning (DPR) otherwise known as Green Routes Activity 2 - Electronic Verification of Officer s Certificates Activity 3 - Ensuring the Quality of Hydrographic Data on Shipping Routes and Areas Activity 4 - Global Sharing of Maritime Data The sea traffic management (STM) concept The central core of DPR, and in essence, the MONALISA Project itself, is the concept of sea traffic management (STM) which is akin to air traffic management (ATM). Indeed the distinction between DPR and traffic regulation as it operates currently is that DPR incorporates the notion of STM. It needs no reiteration that ATM is a system that has been time-tested in the realm of aviation and its international regulation. The MONALISA Project will improve the flow of processed information which will eventually lead to the establishment of the newly envisaged STM. It is anticipated that STM will offer a new service facility known as the Sea Traffic Coordination Center (STCC), similar to air traffic control centres (ATCC) in aviation. The STCC concept will provide new processes and methodologies for communication of information between ship and shore, and ship-to-ship. The STM concept is based on information sharing among interested parties rather than the more regulatory approach where information is imparted only on a "need to know" basis. The STM approach is similar to how information is managed under ATM. The principal objective of the STM is to gather at the STCC, information from ships regarding actual routes followed by them, and from the STCC and coordinate maritime traffic in the same way as vessel traffic systems (VTS) operate, but not only within confined waters but also in the open seas. Ships, as well as shore control establishments, will be in a position to share voyage plans in tactical situations and where certain actions need to be executed for navigational management. Ship masters therefore will have the benefit of being able to have at their disposal, voyage plans that will incorporate optimum fuel consumption, shortest navigable route and other navigational criteria that the master may deem to be relevant or essential. Under STM, voyage plans will be calculated with real time data provided by meteorological information providers, port authorities and maritime administrations. The data will take into account biodiversity areas and maritime safety and security information to assist in the optimization of the voyage plans. Routing information will be made available to other vessels who will be sharing routes so that there will be increased awareness among navigators of on-board situations if vessels approach potential collision points

13 In effect, the STM concept through the STCC, places the master and the ship at the centre of the whole traffic management process so that maritime safety and environmental protection is maximized. The system flowing from the STM concept will enable assistance to be provided to vessels when needed; also navigational alternatives can be provided especially when a vessel is within congested waters or within the premises of a port or harbour Dynamic and proactive route planning "Green Routes" The object of this activity is to produce an innovative model of sea route planning based on a combination of the phenomena of the electronic chart information and display system (ECDIS) and the automatic identification system (AIS) which are currently in use. Under the newly developing model, the pre-planned routing of a vessel will be visibly available to other vessels and shore-based monitoring centres. The estimated best route plan and associated speeds will be agreed among the ships' masters and the relevant pilotage stations ashore. The planned route will be based on information regarding local navigational parameters such as tides, currents, wind and wave conditions, water depths and sea ice conditions that are likely to affect voyage time and bunker consumption. The routing will also take account of traffic density, availability of berths in the next port of call and cargo handling schedules. It is envisaged that DPR will contribute significantly to the improvement of overall sea transport efficiency including optimization of fuel consumption and resultant reduction of exhaust emissions from ships. The new system will include an alarm function intended to alert all parties concerned in instances where a vessel makes a diversion from its planned route on which agreement has been reached. It is contemplated that the alarm function will greatly enhance maritime safety and marine environmental protection. The leadership of this activity has been taken by the Swedish Maritime Administration with support from other private sector, government and academic entities in Scandinavia Verification system for certificates held by ships' officers This activity involves the concept of an automatic system for, inter alia, monitoring and verifying certificates held by ships' officers. The envisaged model will be designed to have the capability to record officers' certificates and time spent on watch by each officer. A maritime IDcard with security codes will be designed and tested. With the use of automatic identification system (AIS) transmissions which is a technology already in place, the authenticity of ships' officers' certificates will be verified with shore-based information to determine whether the certificates are valid. It is anticipated that such verification carried out automatically by the newly innovated system will contribute towards ensuring seafarer competence and prevent, or at least minimize, work fatigue which is a crucial factor in the causation of casualties at sea arising from human error. This activity is also being led by the Swedish Maritime Administration with support from the Swedish Transport Agency and non-government entities in Sweden Quality assurance of hydrographic data An important factor in safety of navigation is availability of adequate water depth for ships especially in enclosed and semi-enclosed seas and waterways. Water depth information is 10

14 primarily available to the navigator through nautical charts which are constructed from hydrographic data. The discipline of hydrography involves information on water depth or bathymetry precisely co-related to geographical coordinates. Bathymetric data in turn is derived from hydrographic surveys mainly carried out by purpose-built hydrographic surface vessels or less commonly from airborne craft using laser beams known as Lidar bathymetric techniques. In the interests of navigational safety, quality assurance of hydrographic surveys and resulting data are urgently required. Such assurance of quality has become a pressing need due to the increasing number of deep draft vessels especially those navigating in relatively congested waters. It is important, for example, to be aware of any previously unknown shoals possibly existing within the cracks of outdated sounding lines. Any such information will prompt the conduct of a re-survey expeditiously and urgently. It is necessary for re-survey of HELCOM fairways and Baltic Sea port areas to be conducted without delay using modern quality-tested methods to ensure that hydrographic data presented in existing nautical charts and other nautical publications are correct and up to date. It is anticipated that the outcome of this activity will form the basis for optimum route planning. Also, such matters as recommended fairways, dredging operations and other navigational decisions must be based on accurate hydrographic information obtained through rigorous scientific survey methods. The depiction of depth through appropriate data models and vertical reference surfaces together with presentations of depths in nautical charts and publications are presently made in accordance with national standards 6. This may pose obstacles for cooperation and exchange of bathymetric data. Thus, common technical standards will be elaborated within this activity to form a basis for decisions. The activity is being led by the Finnish Transport Agency together with the Swedish Maritime Administration Global sharing of maritime information The aim of this activity is to develop a functionally demonstrative system defined both technically and procedurally; the final objective being to extend the sharing of maritime information on to a global scale and also to expanding the scope of maritime information shared between maritime authorities which will be consistent with their specific needs. It is contemplated that the activity will be based on experiences gained from HELCOM AIS, SafetSeaNet and Stires. 2.2 Technology versus Law In the maritime field, technology and law have often been in conflict or the law has been inadequate to recognize and give legal effect to the technology. It is well-known that technology advances in leaps and bounds and its development is usually at a fast pace. It is frequently driven by operational and technical needs of the industry and also optimization in economic and functional terms. By contrast, law is inherently conservative in its approach; indeed it can also be described as suffering from a state of inertia in many instances. Typically, therefore, development in the law lags behind technological innovation which results in frustration among those who wish to implement the new technology expeditiously but there are legal impediments 6 The national standards should be in conformity with the prescriptions of the International Hydrographic Organisation (IHO) where a state is a member of the IHO. 11

15 because the old law may need to be amended, or in most instances, will first need the approval or at least the endorsement of those who are responsible as the makers of the policy that leads to the law. It is apparent that the MONALISA initiative as an innovative experiment is faced with the same predicament as other technological developments in the maritime arena. In other words, the technology which is in line with EU strategy particularly for the Baltic Sea Region, has moved ahead and is virtually ready for implementation to fulfill the EU concept of green transport corridors, but is hamstrung by certain elements in the associated legal regimes currently in place. What is evident is that as a matter of EU policy which is the progenitor of EU law as yet undefined, the MONALISA Project is on all fours with the aspirations of the states in the Baltic Sea Region. Not only that, the technological development to date carries with it the perception of universal benefits to safety of navigation and environmental protection of the seas for the world shipping community and industry at large. But in several respects, what is envisaged as technological benefit is potentially in conflict with the extant international maritime law as will be elaborated in this Report in contextual detail. It has been realized by the innovators and management of the MONALISA Project that there are several legal issues which require analytical examination in light of what the technology embedded in the MONALISA Project purports to achieve. At the moment it is perceived that the legal issues mainly have to do with the DPR concept and therefore one sub-activity under the DPR activity of the Project has been identified as dealing with legal aspects of the Project. However, in the view of this author all the activities under the Project are interrelated, and therefore the legal concerns are likely to impinge on the other activities as well. What is essential at this point is to recognize the fact that a fair amount of consideration must be given to the relevant state of the laws as it stands to determine what needs to be done to make the law compatible with the technology which may include changes or additions and elaborations to the legal regimes that impact on various elements of the MONALISA Project. Thus, equal attention must be paid to the development of the law from perhaps a micro perspective leaving the macro dimension of the law intact. This tentative conclusion is based on the assumption that changes to well-established international conventions will be difficult to accomplish at best and impossible at worst. The interaction and co-relation between law and technology is rather inherent, sometimes with very positive attributes but at other times in dire need of policy intervention at national and international levels. It is hoped that whatever wrinkles might exist between the law and the technological aspects of the MONALISA Project, they will be smoothened at the earliest opportunity. 2.3 Summary of Legal Issues From the beginning of the MONALISA Project, legal issues were recognized as a key component for the future implementation of the STM system and the project as a whole. As mentioned earlier, the examination of the legal issues was thus identified as a sub-activity under the DPR and was to be considered in detail during In the opinion of this author, the legal issues are spread across the spectrum of activities of the MONALISA Project; in other words, all the four principal activities have some legal implications associated with them. 12

16 Before delving into an analytical examination of the legal issues, it can be stated that the issues are restricted to public law considerations, albeit within the parameters of both public international law as well as international maritime regulatory law. Although the Project as a whole has been conceived with the aim of eventually providing technical support to shipping and the shipping industry, which is largely a private sector activity, given the fact that the centre of gravity of the Project is technical in scope, from a legal perspective, it is almost entirely associated with public law considerations. Thus, whereas the technical aspects of the Project must be compatible with the relevant regulatory maritime regimes, their operations on board ships will involve public international law issues falling within the sub-specialization of the law of the sea. Essentially there are three areas of law that are pertinent to the MONALISA Project. First, there are issues arising out of the international law of the sea which in the current codified form is reflected in UNCLOS, particularly in relation to the various maritime zones of a coastal state and also the high seas where freedom of navigation is a right that is enjoyed by all states. In the detailed text concerning UNCLOS which appears in the third section of this Report, the maritime zones are discussed in a contextually comprehensive way. In the discussion, the phenomenon of innocent passage in the territorial sea and transit passage in international straits are addressed together with rights in archipelagic sea lanes. In this section the next aspect of legal considerations is presented through discussion of various elements of IMO Conventions. These are mainly SOLAS, COLREGS, LOADLINE and STCW. The first three are mainly maritime safety conventions with which are associated a number of specific legal issues, namely routing systems and traffic separation schemes which are the very essence of the DPR activity. It is important to note at the outset that there are a number of specific legal issues associated with the safety conventions which include the issues of routing systems, VTS and VTMS. Notably, these issues are also addressed directly or peripherally by UNCLOS as well; and therefore, it will be necessary to carry out some comparative analysis of these phenomena with respect to UNCLOS and SOLAS. Closely related to SOLAS and COLREGS is the subject of search and rescue (SAR) which is an aspect of maritime safety. SAR is both an international as well as a regional concern and is governed by the SAR convention of the IMO. It should be noted that SAR is also connected to salvage given that both these activities frequently emanate from shipping casualties such collisions, groundings, fire, oil spills and the likes. Salvage as sea is also governed by convention law which is the International Salvage Convention, 1989 adopted by the IMO. It is to be noted that SAR and salvage are also issues relevant to the interests and jurisdiction of coastal states because the casualties which give rise to them usually take place in locations close to the shore. Whereas usually the regulatory regimes promulgated through the above-noted conventions are referred to as hard law, there is also a soft law component to maritime safety which involves the issues of seafarer qualifications, including training and certification for both the professional as well as the operational categories of seafarers. Closely associated with these issues is the sensitive and sometimes controversial issue of seafarer welfare. This aspect of the soft side involves what is often referred to as the human element which has both a safety as well as a welfare dimension. Indeed the two are inseparably joined together. 13

17 Under the international law of the sea states can at once exercise rights and must assume certain responsibilities in their roles as flag states, coastal states and port states. The jurisdiction that a state can exercise under each of these three roles is contained in UNCLOS as well as certain IMO and ILO Conventions. Port state control is a control mechanism that is a function of the exercise of port state jurisdiction. By contrast, with few exceptions, the flag state has exclusive rights over its ships in the high seas. Coastal states rights and responsibilities are well set out in UNCLOS. Among other specific issues, marine environmental concerns are in the forefront of international maritime considerations. The types and sources of marine pollution and in particular, ship-source pollution are multifarious and need to be thoroughly understood by reference to the various conventions to which they relate and the objects of those conventions which are mainly divided into two groups, namely, regulatory maritime law and private maritime law. In this respect MARPOL is the most important convention, which is discussed in this Report, but the London Convention on Dumping of Wastes at sea as well as the Oil Pollution Preparedness and Response Convention (OPRC), 2001 and a host of other regulatory conventions are also relevant. In legal terms, a distinction must be made between law-making on the one hand at both the international and national levels, and their enforcement through administrative as well as judicial means. Associated with all of the above is the issue of hydrographic research and surveys and the role of the IHO relative to that of the IMO. In the context of the MONALISA Project, hydrographic implications are particularly important in view of the ambitious and innovative e- navigational component of STM and route planning. 14

18 CHAPTER 3 - ISSUES ARISING OUT OF UNCLOS 3.1 Maritime Zones under UNCLOS Prior to the adoption of the four Geneva Conventions of 1958 there were only two bodies of water that could be characterized as maritime zones, namely, a narrow 3 nautical mile belt of sea beyond the coastline which was the territorial sea, and the high seas which were seaward of the territorial seas. The separation between land and sea, the waters of which are of tidal character, has been by virtue of customary international law, depicted by the low waterline. Following the 1958 Geneva Conventions and UNCLOS in 1982, several maritime zones have come into existence, which apart from possessing their distinctive geographical characteristics also have different functional objectives. At present there are six maritime zones which are internal waters, territorial seas, contiguous zone, EEZ, continental shelf and the high seas. The relative configuration of these zones is illustrated in the diagram below. Adapted from R.R. Churchill and A.V. Lowe, 1999; see infra, note 6 at p Baselines Any discussion on maritime zones, from a historical perspective or otherwise must begin with baselines. The name itself suggests that it is the line which forms the basis for the measurement of maritime zones. It is a phenomenon that is depicted in both physical as well as in juridical terms in international law. In UNCLOS both these dimensions are reflected. However, in attempting to understand the juridical concept of the baseline, it is first necessary to fully 15

19 appreciate the underlying scientific and physical phenomena. As mentioned above, prior to the Truman Proclamation of 1945 there was the singular concept of the territorial sea as a maritime zone of the coastal state. The high seas are not a coastal state maritime zone because they are available for the use of all states equally and without any right of occupation by any specific state. The baseline is described as the "territorial sea baseline" because it is the line from which the outer limit of the territorial sea is measured. As such, the rules relating to baselines are treated as being an integral part of the law associated with the territorial sea. In explaining and critiquing this notion, it has been stated that - This was justifiable at the time when the territorial sea was the only zone of coastal state jurisdiction. But since the baseline is now used to measure not only the outer limit of the territorial sea but also the outer limit of the contiguous zone, the exclusive fishing zone and the EEZ, and in some circumstances the continental shelf, it no longer seems appropriate to consider baselines simply as part of the law relating to the territorial sea 7. There are two varieties of baselines; the normal and the straight baseline, provided under UNCLOS. The former is based on the physical or scientific phenomenon of tidal variations while the latter is a juridical creation representing essentially a codification by treaty of a judicial pronouncement. In Article 5, the normal baseline is defined as "the low water line along the coast as marked on large scale charts officially recognized by the coastal state". The low water line depicts the so-called sinuosity of the coastline where the high water mark is further landward relative to the low water mark. It is obvious that the choice of the low water line as the normal baseline has given to the coastal state more territorial and zonal space. High and low water are tidal phenomena governed by the position of the sun and the moon relative to the earth at any given time. Notably, the force of gravitation exerted on the earth by the moon is far greater than that exerted by the sun because of the moon's proximity to the earth. Related to that scientific verity is the fact that the gravitational effect of a heavenly body is more pronounced on water than on land because of the fluidity of the former. Thus the revolution of the moon around the earth creates two instances of high and low water over a twenty-four period each occurring alternately every six hours. This is represented mathematically by a sine curve configuration from which the expression "sinuosity of the coastline" has emanated and is now entrenched in the legal literature on baselines. It is noteworthy that high and low water marks are not fixed because the relative positions of the sun and moon vis a vis the earth are constantly changing. When the sun and moon are on the same side of the earth, the combined gravitational pull of the two heavenly bodies is highly amplified. The tides so created are known as spring tides. By contrast, when the sun and the moon are on opposite sides of the earth, their gravitational forces are partially neutralized and the combined effect is weaker. These are called neap tides. When the two heavenly bodies are at right angles to the position of the earth, the resulting tidal phenomena correspond to the relative intensities of the combined gravitational forces 8. 7 R.R. Churchill and A.V. Lowe, The Law of the Sea, 3rd. edition, Manchester: Juris Publishing, Manchester University Press, 1984 at p.1. 8 T.G. Jones, Principles for Second Mates, 3rd Ed., Glasgow: Brown, Son & Ferguson Publishers, 1952 at pp

20 Given the natural phenomenon of tides resulting from the relative exertion of gravitational forces of the sun and moon on the earth, the use of the low water line in terms of legal application for the determination of the land-sea interface affords an obvious geographical advantage to the coastal state because in ordinary circumstances, that is what defines the baseline for the measurement of the outer limits of the territorial sea and other maritime zones. However, certain natural coastline configurations are incompatible with the use of the low water line as the baseline. Indeed two such instances are identified in Article 7 paragraph 1 of UNCLOS which refers to "localities where the coastline is deeply indented and cut into"; in other words, is jagged in natural character, and where there is a "fringe of islands along the coast in its immediate vicinity"; in other words, the coastline is cluttered with numerous islands. 9 In any or both such situations, the method of straight baselines joining appropriate base points can be applied under this Article instead of normal baselines. From these straight baselines, the outer extremities of the territorial sea and other maritime zones can be measured. Article 7 contains specific rules concerning straight baselines some of which include certain strictures and limitations. Special and particular situations are addressed such as high instability resulting from tidal phenomena, or the presence of a delta. Where a regression of the seaward extent of the low water line occurs subsequent to its establishment as the furthermost seaward line from the shore, the original straight baseline remains effective until the coastal state decides to alter it. It is not permissible to draw straight baselines that deviate too much from the general direction of the coastline. Only sea areas lying landward of the baseline that are closely linked to 10 the land domain are recognized at law as internal waters. In Article 13, low tide elevations, otherwise referred to as "drying reefs" by seafarers, are defined as natural land features surrounded by water in such a way that they are visible at low tide but are submerged and therefore invisible when the tide is high. The drawing of straight baselines from or to such low tide elevations is prohibited unless there is a permanent structure such as a lighthouse built on it that is always above sea level. The rule is subject to an exception. Even if there is no such structure, it is permissible to utilize a low tide elevation if there has been demonstrable international recognition of the drawing of such baselines. 11 Straight baselines are not permitted to be drawn in a way that has the effect of cutting off the territorial sea of another state from the high seas or an EEZ 12. Pursuant to Article 9, the baseline across the mouth of a river that flows directly into the sea is a straight line between points on the low water line of the banks of the river. The line drawn across the mouth of a bay is known as a bay closing line. Under Article 10, it is determined by applying the "semi-circle rule" which provides that an indentation in the coastline is a juridical bay if the waters contained in it constitute an area at least as large as the area of a semi-circle generated by the diameter depicted by a line no longer than 24 nautical miles drawn across the mouth of the indentation. Notably, "historic bays" are not subject to the specific rules regarding juridical 9 The application of straight baselines to jagged or deeply indented coastlines was first legally validated by the decision of the International Court of Justice in the Anglo-Norwegian Fisheries Case [1951] ICJ Rep See paragraphs 2 to 4 of Article See Article 13, paragraph 1 for definition of "low tide elevation" and Article 7, paragraph 4 for the rule 12 Article 7, paragraph 6. 17

21 bays 13. There are also rules on the drawing of baselines relating to reefs, islands, artificial islands and archipelagoes Internal waters The regime of internal waters is described in Article 8 of UNCLOS. It is a maritime zone of the coastal state and is defined in paragraph 1 as "waters on the landward side of the baseline of the territorial sea". The internal waters of a state are in essence assimilated to its land territory and therefore full territorial sovereignty applies to those waters in the same manner as it applies to the land territory itself. Article 2 in its first paragraph refers to the sovereignty of the coastal state extending beyond its "land territory and internal waters" which implies that the same sovereignty that applies to the land territory of a coastal state applies mutatis mutandis to its internal waters. The assertion and exercising of this sovereignty under international law is virtually without impediment. Thus the regime of internal waters has rarely featured in the law of the sea whether in terms of customary or convention law 15. The outer extremities of sea ports are usually a part of the baselines of the coastal state. As such, the waters inside a port are internal waters, and therefore, in such waters the coastal state can exercise full sovereignty. Arguably, there is no inherent right of a foreign ship to enter a port; however, in the Aramco Arbitration of 1958 it was held that "[A]ccording to a great principle of public international law, the port of every state must be open to foreign vessels and can only be closed when the vital interests of the State so require." 16 Nevertheless, the predominant view is that under international law, any rights enjoyed by foreign vessels in this regard are not without limitations. In the Nicaragua case 17 it was held that the internal waters of the state are subjected to that state's exercise of sovereignty and that it is "by virtue of its sovereignty that the coastal State may regulate access to its ports" 18. There is, however, an exception in customary international law pursuant to which if a ship is in distress and human life on board is endangered it has a right to port entry 19. The doctrine of sovereignty enables a coastal state to exercise virtually unlimited jurisdiction over ships in its internal waters. However, it will usually not assert jurisdiction over matters pertaining solely to the ship's internal matters unless it is requested to intervene by the master or diplomatic or consular authorities of the ship's flag state simply because the flag state's jurisdiction over its own ship continues to reign supreme regardless of where the ship is located at a given time. In criminal matters in particular, the coastal state will refrain from any 20 intervention if the offence in question exclusively involves the "internal economy" of the ship. 13 See Article 10, paragraphs 2, 4, 5 and See Articles 6, 121, 11 and 47 respectively. 15 Supra note 7, at pp Aramco v. Saudi Arabia (1958) 27 ILR at p Nicaragua Case [1986] ICJ Rep Ibid., at p See the cases of Creole (1853), Moore, Int. Arb and Kate A. Hoff (The Rebecca) (1929), IV RIAA See D.R. Thomas, Maritime Liens; British Shipping Laws Vol. 14, London: Stevens & Sons, 1980 and supra note 7 at p

22 But it will almost invariably assert jurisdiction if the peace, good order or security of the port or shore-based life is affected by the incident or the offence committed on board. 21 Where there are international water courses such as the Rhine or Danube rivers which are internal waters of multiple states, no one particular state among them can exercise exclusive jurisdiction over those waters. These waterways are important for interstate commercial traffic and carriage of goods in terms of both unimodal as well as multimodal transportation. Any freedom of navigation exercised by foreign ships in these waterways is almost always subject to bilateral or multilateral arrangements entered into by the riparian states which have sovereignty over the waters Territorial sea The territorial sea is in essence the seaward extension of a coastal state's land territory. The extremity of its outer limit is therefore a matter of considerable importance. Previously under customary international law emanating from state practice, the breadth of the territorial sea was 3 nautical miles. It was based on the so-called "cannon-shot" rule which exemplified the application of the doctrine of effective control and was closely associated with the notion of sovereignty. To assert sovereignty it was necessary for a littoral state to be able to demonstrate effective control over the belt of waters adjacent to the coast which it purported to claim as an extension of its land territory into the sea. The distance to which a cannon ball could be fired from the shore demonstrated the range of effective control over sea territory which a coastal state could exercise. In most countries, the reach of a cannon ball was 3 nautical miles which came to be defined as the breadth of the territorial sea except in the Scandinavian countries where pursuant to the cannon-shot rule it was established at 4 nautical miles. 22 At the United Nations Conference held in 1958 at which the Convention on the Territorial Sea and the Contiguous Zone was adopted and the subsequent Conference held in 1960, the participating states failed to reach agreement on the breadth of the territorial sea. 23 Eventually it was established under UNCLOS at a maximum of 12 nautical miles from the baselines. 24 It is undoubtedly a major achievement in this important and crucial branch of international law. It is significant that in the territorial sea, the sovereignty of the coastal state is inchoate or incomplete unlike the case of internal waters or the land domain. Under the customary international law as well as under UNCLOS, sovereignty in the territorial sea is subject to the right of innocent passage of foreign ships. Given that the territorial sea regime is different from the regime of internal waters in this particular aspect, the notion of "innocent passage" is immediately brought into focus for analytical examination. At the risk of repetition it must be emphasized that the concept is intimately associated with and is unique to the territorial sea regime; no other maritime zone provides for innocent passage of foreign ships. In UNCLOS, the concept consists of two components which are treated in detail. One is the issue of what is 21 Supra note 7, at pp David L. Larson et al., Major Issues in the Law of the Sea, Durham, N.H.: University of New Hampshire, 1976 at p Ibid. 24 See UNCLOS Article 3. 19